Citation Nr: 0017215
Decision Date: 06/29/00 Archive Date: 07/05/00
DOCKET NO. 99-07 448 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Whether the character of the appellant's discharge is a bar
to payment of VA compensation.
REPRESENTATION
Appellant represented by: California Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
J. Johnston, Counsel
INTRODUCTION
The appellant had active military service from November 1963
to January 1967. His DD Form 214 reflects that he had a
significant amount of lost time and that he was discharged
"under other than honorable conditions."
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an adverse determination of the
Los Angeles, California, Department of Veterans Affairs (VA)
Regional Office (RO) which held that the character of the
appellant's discharge was a bar to all VA benefits except for
health care under Chapter 17 of title 38, United States Code.
FINDINGS OF FACT
1. All relevant evidence necessary for the present
disposition of the appeal has been requested or obtained.
2. During the appellant's service from November 1963 to
January 1967, he was twice punished under Article 15, UCMJ,
and was convicted of multiple offenses at three special
courts-martial and the sentence from his final special court-
martial of September 1996 included a bad conduct discharge
(BCD) which was approved by the convening authority and on
appellate review.
3. The appellant was discharged under other than honorable
conditions because of his willful and persistent misconduct.
4. While the appellant received a clemency discharge in
November 1975, this discharge was issued pursuant to
Presidential Proclamation No. 4313 of September 16, 1974, and
this particular clemency action does not remove the bar to VA
benefits in accordance with governing VA regulations.
5. There is no evidence or argument that the appellant was
insane at the time of the offense(s) which resulted in his
punitive discharge by special court-martial.
CONCLUSION OF LAW
The appellant's discharge was issued under dishonorable
conditions and bars him from receiving VA compensation based
upon the period of service for which it was issued.
38 U.S.C.A. §§ 101(2), 5303 (West 1991); 38 C.F.R.
§ 3.12(d) (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Law and Regulations. VA disability compensation may be
awarded to a "veteran" for any disease or injury that was
incurred in or aggravated during service, if the claimant was
"discharged or released under conditions other than
dishonorable". See 38 U.S.C.A. §§ 1110, 1112(a)(1), 1131,
1137; 38 C.F.R. §§ 3.303(a), 3.306, 3.307. The definition of
"veteran" in 38 U.S.C.A. § 101(2) also includes the
requirement that the "person [have been] discharged or
released [from active service] under conditions other than
dishonorable". The term "dishonorable" in 38 U.S.C.A. §
101(2) can include a bad-conduct discharge. See Camarena v.
Brown, 6 Vet. App. 565, 567-68 (1994) (affirming Board
finding that recipient of bad-conduct discharge was not a
"veteran" as defined in 38 U.S.C. § 101(2)). The Court in
Camarena noted that VA regulation, 38 C.F.R. § 3.12
"provides, inter alia, that a discharge
is considered to have been issued under
dishonorable conditions if given for
"willful and persistent misconduct. This
includes a discharge under other than
honorable conditions, if issued . . .
because of [such] conduct."
In short, the regulation does not limit "dishonorable
conditions" to only those cases where a dishonorable
discharge was adjudged. Thus, a discharge or release for
willful and persistent misconduct, including a discharge
under other than honorable conditions, if issued because of
willful and persistent misconduct, is considered to have been
issued under dishonorable conditions. A discharge because of
"a" minor offense will not, however, be considered willful
and persistent misconduct if service was otherwise honest,
faithful and meritorious. 38 C.F.R. § 3.12(d)(4).
Unless a discharge review board established under 10 U.S.C.A.
§ 1553 determines on an individual case basis that the
discharge would be upgraded under uniform standards meeting
the requirements set forth in paragraph (g) of this section,
an honorable or general discharge awarded under the
President's directive of January 19, 1977, implementing
Presidential Proclamation 4313 of September 16, 1974, does
not remove any bar to benefits imposed under 38 C.F.R. 3.12.
38 U.S.C.A. § 5303(e)(1)(2); 38 C.F.R. § 3.12(h)(1).
Compensation under Chapter 11 of 38 U.S.C.A. shall be awarded
for a qualifying additional disability or a qualifying death
of a veteran in the same manner as if such additional
disability or death were service connected. 38 U.S.C.A.
§ 1151(a) (emphasis added).
Factual Background. The appellant had one enlistment
commencing in November 1963. Service personnel records on
file reveal that in July 1964 he received nonjudicial
punishment (Article 15, UCMJ) for hitchhiking, insufficient
funds, out of uniform, and failure to obey a lawful order.
In January 1965, the appellant received nonjudicial
punishment for being absent from his appointed place of duty
and for disobeying a lawful order.
In March 1965, the appellant was convicted by special court-
martial for unauthorized absence for about 38 days. He was
sentenced to two months' confinement at hard labor and
forfeiture of pay.
In March 1966, the appellant was again convicted by special
court-martial for two separate unauthorized absences, one for
about 18 days and one for about 10 days, speeding and drunken
driving, drunk in public place in uniform, and drunk in a
public place. The sentence as approved by the convening
authority was three months' confinement at hard labor,
forfeiture of pay, and reduction to the lowest enlisted grade
(E-1).
Finally, the appellant was again convicted by special court-
martial in September 1966 for an unauthorized absence of
about 79 days. The sentence as approved by the convening
authority was confinement at hard labor for five months,
forfeiture of pay, reduction to E-1, and a BCD. The sentence
was affirmed on review and clemency was denied upon
application. The appellant's DD Form 214 states that he was
separated as a result of court-martial and the
characterization of service is recorded as under other than
honorable conditions.
In August 1967, subsequent to the veteran's separation for
cause, the Navy Discharge Review Board reviewed the
appellant's naval records and considered evidence presented
in his behalf and decided that no change, correction or
modification was warranted in his characterization of
discharge.
In November 1975, the appellant was notified that he had been
granted clemency for his absence offense. The clemency
discharge was to replace his less than honorable discharge.
Implementing this action, a DD Form 215N was issued in
December 1975 indicating a correction to the appellant's
DD Form 214 had been effected "pursuant to Presidential
Proclamation No. 4313." The DD Form 1953N issued in
conjunction with this action documented that the appellant
was receiving a "clemency discharge" pursuant to Presidential
Proclamation No. 4313, September 16, 1974.
In April 1987, the RO issued an administrative decision
regarding the appellant's character of discharge. It was
determined that the appellant's discharge for his period of
service constituted a bar to VA benefits. It was noted that
VA regulations provide that the veteran's Presidential pardon
and clemency discharge under Presidential Proclamation
No. 4313 did not remove this bar to VA benefits.
Thereafter, the appellant filed a claim for service
connection for a left knee disability which he attributed to
an injury incurred in service. The RO notified the veteran
that the character of his service constituted a bar to
payment of VA benefits. He was also notified that an
exception might exist solely for entitlement to VA medical
treatment for any disability actually incurred or aggravated
during service. He was also notified of his right to file a
request for revision of his character of discharge with the
service department Discharge Review Board or to apply for
correction of his military records by the service department
board and he was provided DD Forms to initiate such action.
Thereafter, the appellant pursued a claim for entitlement to
VA medical care for a left knee disability and, because his
left knee was shown to have been injured during service, VA
medical care was subsequently authorized by RO rating action
in May 1989.
In August 1997, the appellant again sought service connection
for a left leg disability and he was again informed that the
character of his discharge constituted a bar to such
benefits. In October 1997, the appellant amended his claim
seeking entitlement to VA compensation in accordance with
38 U.S.C.A. § 1151, arguing that surgery performed at a VA
hospital had resulted in additional disability. The RO
subsequently notified the appellant that consideration of a
claim in accordance with 38 U.S.C.A. § 1151 was also
precluded since that was a benefit specifically accorded to
"veterans" and that his character of discharge resulted in a
bar to such benefits. The appellant lacked veteran status
for VA compensation purposes, and that includes VA
compensation payable under Section 1151. The appellant
appealed.
Analysis. All actions taken by the RO in this case have been
correct both factually and legally. The evidence on file
clearly demonstrates that the appellant was separated from
service with an under other than honorable conditions
discharge. Entitlement to VA benefits (with the exception of
medical care already accorded to the appellant) is predicated
upon the appellant being accorded "veteran" status consistent
with the applicable laws and regulations. The term "veteran"
means a person who served in the active military service and
who was discharged or released therefrom under conditions
other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R.
§ 3.1(d).
The issue presented in this appeal is whether the appellant
is a "veteran" within the meaning of 38 U.S.C.A. § 101(2).
The appellant did serve on active duty with the United States
Navy. However, during his service from November 1963 to
January 1967, he was twice punished under Article 15, UCMJ,
and was convicted of multiple offenses at three special
courts-martial and the sentence from his final special court-
martial of September 1996 included a bad conduct discharge
(BCD) which was approved by the convening authority and on
appellate review.
The evidence on file clearly demonstrates that the appellant
engaged in a pattern of misconduct during his enlistment. As
detailed above, he received nonjudicial punishment in July
1964 for four military offenses, and he received nonjudicial
punishment in January 1965 for two military offenses. He was
convicted by special court-martial for unauthorized absence
in March 1965. He was convicted of special court-martial for
two unauthorized absences, speeding and drunken driving,
being drunk in a public place in uniform, and being drunk in
a public place in March 1966. He was convicted by special
court-martial for unauthorized absence in September 1966.
The offenses of which the appellant was convicted or found
responsible, both by court-martial and by nonjudicial
punishment, are certainly considered to be willful
(intentional) actions which demonstrate the appellant's
refusal to comply with lawful orders of competent military
authority. Additionally, the number of individually
identified military offenses during the appellant's sole
enlistment may certainly be considered to be persistent.
While the final special court martial which directly and
immediately resulted in the appellant's less than honorable
separation resulted from his conviction of a single
unauthorized absence of about 79 days, records associated
with this September 1966 conviction clearly indicate the
appellant's prior convictions were considered. The appellant
was separated from service with what his DD Form 214 listed
as an under other than honorable conditions discharge. One
year later, the Navy Discharge Review Board conducted a
review of the appellant's case and found upon consideration
of all evidence, including any matters submitted by the
appellant, that no change or upgrade was warranted. Although
the appellant was later provided a Presidential pardon and
clemency discharge, this action was taken under Presidential
Proclamation No. 4313 which is specifically excluded from
consideration as a valid upgrade for VA benefit purposes by
38 U.S.C.A. § 5303(e)(2)(A) and 38 C.F.R. § 3.12(h)(1).
There is no evidence nor is there any argument that the
veteran was insane at the time of the commission of the
offense(s) for which he was discharged. Accordingly, the
appellant may not be considered as a veteran for VA
compensation purposes.
While the appellant has most recently amended his claim by
alleging that he has additional left leg disability as a
result of VA medical or surgical treatment in accordance with
38 U.S.C.A. § 1151, VA compensation payable under that
section is still predicated, in direct language of the
statute, on an appellant having attained "veteran" status in
accordance with the applicable laws and regulations. The
appellant does not have that status and, accordingly, he is
not entitled to pursue a claim for VA compensation under
38 U.S.C.A. § 1151. Cf. Trilles v. West, 13 Vet. App. 314,
333 (2000). Only veterans, or those whose entitlement is
based upon a relationship to a veteran, are entitled to the
benefits of Title 38. Virtually all of the provisions of
Title 38 use the word "veteran(s)" and are stated in
directive language. Because the appellant is not a veteran
who was released from service under conditions other than
dishonorable, he is precluded from seeking VA compensation
which is predicated upon attaining veteran status.
The RO previously notified the appellant in March 1988 that
he had the right to request the revision of the character of
his discharge with a service Discharge Review Board or with a
service Board for Correction of Military Records and that
option may remain open to him.
ORDER
Inasmuch as the character of the appellant's discharge is a
bar to payment of VA compensation, the benefit sought on
appeal is denied.
Gary L. Gick
Member, Board of Veterans' Appeals